Politics and the Supreme Court, intentionally, have a tense relationship. Indeed Franklin Roosevelt, when President, attempted to expand its membership so it would find more of his programs constitutional. The Court has the final say and its jurists enjoy lifetime tenure.
Beyond the structural differences, I can recall arguments in my constitutional law classes regarding the extent to which popular opinion influenced decision-making. Purists preferred to think the Court, being supreme, sits well to the north of the grubby fights about the legal way forward. Most know, however, that politics play a role in the appointments, confirmations and even considerations. Most Americans hope, however, that lifetime tenure invites wisdom.
But, let me leave the classroom and turn to the court’s complicity in what are fraught times.
I believe Roe v. Wade (the decision that discovered a constitutional right for abortion) was wrongly decided but decided it was and that occurred in 1973 on a 7 to 2 vote. The opinion was written by Justice Harry Blackman, an appointee of President Richard Nixon; the Chief Justice was Warren Burger, also appointed by Nixon. Both identified as Republicans. One of the dissenting justices, a Democrat, Byron White, was appointed by President John F Kennedy. Politics is inevitably part of the court’s history.
But, when politics seems to overwhelm the court’s deliberations, its authoritative position deteriorates. Indeed it has led the current Chief Justice, John Roberts, to give multiple speeches on the need to elevate Supreme Court decision-making.
The Boston Globe reported that “Roberts has been on a mission to convince the public that if the court is ideologically split, it is about law, not politics.
‘‘We do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation,’’ Roberts told an audience at the University of Minnesota in October.”
Today political parties divide along sharper edges than in 1973. Presidential and U.S. Senate campaigns often turn on Supreme Court appointments or issues. And today’s socio-political divisions often turn on the Roe decision.
We need clarity, if the Supreme Court wishes to step back from the raw edge of politics. It needs to hear a case on abortion restrictions that will result in a decision that answers rather than raises questions. It should not choose a case that leads to a minimalist decision that ducks the core issue. America needs to know when a woman’s right to an abortion is protected and when the States are allowed to restrict that right.
I say “when the right to an abortion” is legally protected because conservative jurisprudence honors precedence and the Roe decision was decided 46 years ago and the decision was not a partisan one decided by the slimmest of majorities.
Yet, my concern is not so much the jurisprudence, but the social and political unrest that persists because the Court has chosen not to settle the constitutional issue. The failure to define the scope of the 1973 decision has led to toxic battles in State after State.
Also, the Supreme Court seems increasingly tethered to Presidential elections. The President will always appoint, but this power should not be the pivotal influence in voting decisions. If Justice Roberts wants to return the Court to a revered institution, he should guide it toward resolving the abortion issue. Indeed, now seems to be just the right time because the Court is still closely divided and the Chief Justice has both stated and shown an interest in decoupling the Court from the overwrought politics of the day.
Law students for generations will study and debate the Roe V. Wade decision. But, the health of our Supreme Court must be restored. Justice Roberts has diagnosed the problem. Only decisive action by a largely unified court will re-elevate the judicial seats each jurist occupy.